Gibson Sibanda ministerial post becomes illegal

The Zimbabwean constitution provides that a cabinet post should be held by a member of parliament and if the appointed minister is not an MP, a parliamentary seat must be found within three months.

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According to the law Gibson Sibanda the Minister for State in the Deputy Prime Ministers Office and MDC-M Deputy President, needed a seat in parliament by 19th May or risk forfeiting his ministerial post.

But the MDC-M have no more appointed seats, after using up both their allocated non-constituency seats. Two senatorial seats were given to Welshman Ncube and Priscilla Misihairabwi-Mushonga – the party’s Secretary General and Deputy. This was in order for them to be eligible for ministerial positions.

A parliamentary seat was given to President Arthur Mutambara, who is now Deputy Prime Minister. They had all lost in the general elections of last year.

MDC-M Deputy President Sibanda had also failed to retain his parliamentary seat in Bulawayo’s Nkulumane suburb, after losing to MDC-T Thamsanqa Mahlangu in the general elections.

It is understood the Principals agreed to create an extra Senate seat just to accommodate the MDC-M Deputy President. But according to the rules of the land, this requires amending the Constitutional before the 19th May deadline – when the three month window period expires.

Constitutional lawyer Derek Matyszak said failure to meet this deadline means legally Sibanda is not lawfully occupying a position as a minister. He said there is a growing and worrying trend by the political leadership to amend the provisions of the Global Political Agreements (GPA) in order to accommodate individuals, without following the law. He said this is what happened when the Principals unconstitutionally appointed extra cabinet ministers, without parliament amending the constitution.

Matyszak said the Principals are fully entitled to amend the GPA but that cannot automatically change the constitution, otherwise there will be a situation where ZANU PF and the MDC formations are simply making up the constitution as they go along. “The Principals seem to be under the mistaken apprehension that because the GPA is part of the constitution that they can just agree to alter the GPA and that automatically alters the constitution – and that is not legally sustainable,” said the lawyer.

Legal experts are increasingly worried that the inclusive government is falling into the ZANU PF trend of amending the constitution willy-nilly and now through the GPA backdoor. Matyszak said the Sibanda saga is one of many constitutional violations that have taken place around the ministers. “In my opinion all the extra ministers that were appointed – you will be aware that the GPA only provided for 31 ministers and they appointed 41 – all those extra ministers are not constitutional appointments. So the fact that they have not brought a constitutional amendment to provide for Gibson Sibanda’s appointment is just an additional illegality.”

We were not able to reach the MDC-M leadership for comment.

Meanwhile questions are being raised about what progress parliament has made since the formation of the unity government, despite wrangling over parliamentary vehicles. Both Houses are now adjourned until 16th June and there have been no signs of attempts to remove repressive legislation. Traditionally Parliament has adjourned towards the end of June.

The pressure group Veritas said that before its break last week, the Senate sat for less than half an hour on Tuesday and then adjourned. The House of Assembly sat on Tuesday for an hour and on Wednesday for two hours and then adjourned.

“In this session of Parliament the House of Assembly has sat for 30 afternoons and the Senate 18 afternoons [these included the day when Parliamentarians were sworn in and the day that the President formally opened Parliament]. Some “working” sittings have been for only half an hour or less,” said the group in a statement.

MPs speaking on condition of anonymity, said they were told that Parliament was adjourning early to cut down on expenses. They were told there is no money and that the government is failing to pay for hotel accommodation and transport expenses.